Premier Foods (Pty) Ltd t/a Blue Ribbon Bakery v Commission for Conciliation, Mediation And Arbitration and Others (JR 2329-13) [2016] ZALCJHB 210 (14 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case No: JR 2329-13

DATE: 14 JUNE 2016

NOT REPORTABLE

In the matter between:

PREMIER FOODS (PTY) LTD t/a BLUE RIBBON BAKERY..................................First Applicant

And

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION..................................................................................................First Respondent

M PHALA, N.O........................................................................................................Second Respondent

SACCAWU obo MICHAEL MASHIMBYI.............................................................Third Respondent

Heard: 09 June 2016

Delivered:14 June 2016

Summary: (Review – dismissal – reasonableness)

Judgment

LAGRANGE J

Introduction

[1] In this matter the third respondent (‘Mashibyi’) was dismissed after being found guilty of the following charges:

“(1) Unacceptable Behaviour:

a. Intimidation and threatening a route supervisor following a direct instruction, given to the AM supervisor to instruct him to go on Route on the 31 January 2013. He threatened him by saying he would bring a gun.

b. Refused to take any orders from route supervisor Darrell.

(2) Gross Misconduct in that:

a. The accused told management that he lost his PDP and did not report matter to management but still departed on Route put the company at risk.

b. Accused then claimed to have had his PDP, but then refused a reasonable and lawful instruction to go on Route 3801 on the 22

January 2013.

(3) Gross Insubordination: refusing a reasonable and lawful instruction; the accused was instructed to report to Mr S Engels on two occasions, which he refused to do.

(4) Gross Insubordination: refusing a reasonable and lawful instruction to go out on route, on the 01st February 2013, after AM Supervisor asked him to come in because he was needed on route. He refused stating that he got a disciplinary enquiry coming up.”

[2] Charge (2) (a) was withdrawn and not relied on. In the original charges, the commas in charge four had been omitted, but it was recorded in the disciplinary chairperson’s summation of the enquiry that this was corrected at the disciplinary enquiry hearing.

The award

[3] The arbitrator concluded that the evidence of the threat made to Kemp was unsatisfactory in all material respects and it was safe to conclude that no threat was made. In reaching this conclusion, the arbitrator took account of the fact that the person at whom the alleged threat was directed, namely Kemp, did not testify as he had left the company and no evidence was presented as to what efforts had been made to obtain his attendance. Secondly, he dismissed the evidence of Mr B Walton (‘Walton’) who testified that he was present in Kemp’s office when Mashibyi called and he overheard the conversation because Kemp took the call on his speakerphone. The reason for rejecting Walton’s evidence appears to be that Mashibyi denied making any call to Kemp and denied taking any call from him and, at the disciplinary enquiry, Mashibyi “...implored the chairperson to check his phone and there was no record of any phone call made”.

[4] In relation to the second charge, the arbitrator found that the instruction to Mashibyi to go on a route with a PDP that had expired was unreasonable because that would amount to asking him to commit an illegal act.

[5] The arbitrator found with reference to the third charge that the evidence as to how the instruction was conveyed to Mashibyi that he had to report to Engels’ office was sketchy and it was not clear if Engels had tried to confirm how and when his instruction to Mashibyi was conveyed by the subordinates he used to convey it.

[6] The arbitrator further found that Mashibyi could not have been instructed to go on a route on 1 February 2013 because he was at work that day waiting for “second loads” and left the premises at 12 pm. The arbitrator found that it was only belatedly that Mabula stated that the instruction was in respect of the following day, but the charge did not state that and accordingly Mashibyi could not have heeded the instruction on one February because he had already left at 3:40 5 am.

[7] Effectively, the arbitrator found that Mashibyi’s dismissal was substantively unfair because the employer had failed to prove any of the charges against him. Consequently, he ordered that the employer should reinstate Mashibyi with retrospective effect.

Grounds of review

[8] The applicant raises a number of grounds of review which may be summarised thus:

8.1 In general terms the arbitrator applied a higher standard of proof than he should have, which amounts to a misdirection.

8.2 In relation to his finding on the fourth charge, the arbitrator ignored the fact that any ambiguity at been clarified at the stage of the disciplinary enquiry already.

8.3 The arbitrator reached unreasonable conclusions because-

8.3.1 he failed to take into account the evidence of the disciplinary enquiry, and

8.3.2 failed to consider the fact that there was evidence that three subordinates of Engels had given Mashibyi instructions on different occasions and he had not complied with any of them.

Evaluation

[9] To succeed in a review of this kind, the applicant must firstly demonstrate not merely that the arbitrator failed to do certain

things he or she should have done, but those failures are ones that, if rectified, would necessarily have led to a different outcome on the available evidence.[1] Secondly, though arguably redundantly, it must also be shown that the same outcome could not reasonably have been arrived at on the evidence.[2]

[10] It appears to have been common cause on the evidence that, at the time Mashibyi was allegedly given instructions to drive Route 3801, he had been working as a spare driver mainly doing the second delivery rounds later in the morning, but without having a regular allocated route. As a result, he normally did not report for work at 04H00 but after 06h00 in the morning.

[11] Engels testified at the arbitration that on or about 21 January 2013, he was told by Walton and Kemp, who were both route supervisors that Mashibyi did not want to drive on a particular route he had been assigned to. He in turn told them to instruct him to go on the route 3801 the following day. Mashibyi came in the day he was supposed to be on that route and said that his PDP had expired. He then told him to renew his PDP immediately but Mashibyi responded that he did not have money to do it right away and Engels asked him why he had been driving without one. By 31 January, Engels thought Mashibyi ought to have renewed his route permit and he gave the route supervisors and Mr S Mabula instructions to send Mashibyi out on a route again. Mashibyi refused to give him a copy of the PDP certificate. It was when Kemp gave Mashibyi the instruction that Mashibyi threatened him and also reportedly said that he would not take instructions from Kemp or Engels. It was then that Engels instructed Mabula to repeat the instruction.

[12] On 2 February Engels learnt that Mashibyi refused to go on the route because he told Mabula he was waiting for a hearing. He then attempted to speak to Mashibyi telephonically but after trying twice he spoke to the site manager who recommended that they should take disciplinary action against him. He also tried through Kemp and Mabula to get Mashibyi to report to his office. As a result of the reported threat made to Kemp, he gave instructions to security staff to stop anyone they suspected of having a weapon so

that, that person could be searched and to call the police if the person refused to be searched. Mashibyi simply denied that he was ever called or that he failed to respond to an instruction to see Engels.

[13] Engels said he only heard about a grievance which Mashibyi had lodged after the disciplinary hearing had taken place and knew nothing about that at the time it was decided to charge Mashibyi.

[14] It is clear from the transcript of the arbitration that when the question of the clarification of the charge by the chairperson came up as recorded in the outcome of the enquiry, the arbitrator was reluctant to accept that the charge sheet could have been amended or clarified during the enquiry. Engels then alerted the arbitrator to the chairperson’s recordal of Mabula’s evidence at the enquiry where he made it clear that he gave the instruction to Mashibyi on 1 February to drive en route 3801 the following day. When he testified at the arbitration hearing, Mabula confirmed that was the instruction he gave Mashibyi. Walton also pointed out that it could never happen that the instruction to go on the route would be given on the same day, it would always be given the day before. However, despite Mabula’s testimony, the arbitrator dismissed Walton’s view that the charge could only have referred to Mashibyi driving the route on 2 February as ‘speculation’ on his part. Mabula, a supervisor who was responsible for dispatching drivers, confirmed that on 1 February, he had instructed Mashibyi to drive route 3801 on 2 February and he had agreed. However later in the afternoon, he was phoned by Mashibyi who told him that he could not drive that route because he was still waiting for a hearing.

[15] Walton’s testimony was that a call came from Mashibyi to Kemp which he overheard because Kemp listened to the call on his speakerphone, which was a common practice when they were busy. He related that Mashibyi had said he will not be doing the route and that Kemp had responded that he was his boss and it was an operational issue and concerned the company’s customers to which Mashibyi responded aggressively saying “I will bring a gun and then you will see what will happen”. Walton related that this made Kemp very upset and he asked him if he was threatening him and there was a bit more argument and the conversation ended following which Kemp went to report the incident to the Health and Safety manager. He also recalled that the health and safety manager had phoned Mashibyi when Kemp and himself were present in the office.

[16] I agree with the applicant that in the assessment of the evidence, the arbitrator simply accepted Mashibyi’s version without making any effort to assess the inherent probabilities of the two versions of the evidence, let alone the relative credibility of the witnesses. For example, in relation to the instructions issued to Mashibyi to go on route 3801 on 22 January and 2 February, he simply avoided the issue of weighing up Mashibyi’s bald denial against the evidence of other witnesses on the supposed

basis that the details of the instructions were ‘sketchy’ which was not in fact true.

[17] In Allie v Foodworld Stores Distribution Centre (Pty) Ltd and Others[3], the SCA emphasised the importance of having regard to the inherent probabilities of the respective versions before even turning to issues of credibility. In that matter, the court identified the weakness of the magistrate’s assessment of the evidence in a defamation claim thus:

“[43] There is nothing inherently improbable about the evidence of the respondents' witnesses and in respect of core aspects they

corroborated each other.

[44] The corollary of accepting Akbar's version of events is that Banu, Sakina, Sayed, Gafoor and the respondents conspired, first, to bring unwarranted charges against Akbar and, secondly, to give false evidence in concert against him in court. This would be a conspiracy of major proportions by actors who did not on anyone's version of events have any grudge, common interest or some other reason for acting in this manner.”[4]

By analogy, the same may be said of the evidence of Engels, Walton and Mabula in relation to the applicant’s evidence which consisted mainly of bald denials.

[18] Further, the version that no conversation took place between Kemp and Mashibyi was not even put to Walton who claimed to have been present when Kemp received the call from Mashibyi. The arbitrator further misconstrued the value of Walton’s evidence by attaching significance to the absence of Kemp’s testimony at the arbitration. It seems the arbitrator failed to understand that Walton’s evidence was direct evidence of the threat Mashibyi made and that it was not necessary for the person at whom the threat was directed to testify as well, before any weight could be attributed to Walton’s testimony.

[19] Futhermore, the accuracy of the chairperson’s notes and summation of evidence of the disciplinary enquiry, including the evidence of Kemp she recorded, were not meaningfully challenged during the arbitration. The notes of the union representative at the enquiry which supposedly would provide a contrary version of the evidence were never produced to contradict her notes either.

[20] In relation to any ambiguity which might have existed relating to the fourth charge, it was in fact common cause that Mashibyi could not have been issued with an instruction on 1 February to drive route 3801 that day because the instruction would have to have been given the previous day. Further, it was obvious from the chairperson’s summation of the enquiry and her evidence that there could not have been any doubt that the charge related to Mashibyi’s failure to drive the route on 2 February.

[21] On the basis of the above, I am satisfied that, on the evidence before the arbitrator, his findings were not rationally justifiable and were implausible. On a proper consideration of the evidence, any reasonable arbitrator would have confirmed the charges on which the applicant was found guilty and on the threat he made to Kemp alone would have confirmed the appropriateness of his dismissal.

Order

[22] In accordance with the reasoning above,

22.1 The award of the second respondent dated 21 October 2013 issued under case number GAJB 7861-13, is reviewed and set aside and his findings are substituted with a finding that the third respondent was guilty of the charges for which he was dismissed and his dismissal was substantively and procedurally fair.

22.2 No order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCERS;

FOR THE APPLICANT : Mr D. Berry for the Guardian Employmers Organisation.

FOR THE THIRD APPLICANT : Ms M. Mjeza for SACCAWU

[1] Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at 2806: “[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”

[1] Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at 2806:

“[25] In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”

[2] Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at 61, para [33]: “If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA.”

[2] Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at 61, para [33]:

“If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA.”

[3] 2004 (2) SA 433 (SCA)

[4] At 443